In a highly technical but significant decision, given the Trump administration’s determination to deport every “criminal alien” it can get its hands on, the U.S. Supreme Court’s five conservative justices held that a 1996 law authorizing detention for noncitizens eligible for deportation after committing certain crimes means the Feds can grab them at any future point and hold them without a bail hearing — even if they’ve been law-abiding and productive citizens in the interim.
The four dissenting liberal justices supported the Ninth Circuit Court of Appeals view that the statute in question provided a use-it-or-lose-it authority to detain these people without a hearing when they are initially released from criminal custody — but not forever.
Those affected by the statute — and this ruling — in many cases entered the country legally, as the Washington Post explains:
Mony Preap was born in a refugee camp after his parents fled Cambodia, and he has lived legally in the United States since 1981. He was convicted in 2006 of marijuana possession but was not picked up by federal authorities after he was sentenced to time served.
In 2013, he served another criminal sentence for battery, a charge that is not a deportable offense. He was detained for months but was released and no longer faces deportation.
Bassam Yusuf Khoury has been a lawful permanent resident of the United States since 1976. In 2011, he was released after serving a 30-day sentence for a drug charge. Nearly two years later, federal authorities picked him up for deportation and he was detained for more than six months before a judge said he could be released.
Dissenting Justice Stephen Breyer found this perpetual jeopardy offensive, as the New York Times reported:
He said the majority had violated the nation’s basic values.
“The greater importance of the case,” he said, “lies in the power that the majority’s interpretation grants the government. It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without an opportunity to obtain bail.”
Samuel Alito, who wrote the majority opinion, wasn’t buying it:
“An official’s crucial duties are better carried out late than never,” Justice Alito wrote.
While deportations without bail hearings didn’t begin with the Trump administration, they have been significantly expanded. Perhaps even more important, the ruling will add to a general atmosphere of fear among noncitizens convicted of even minor drug offenses. Now no matter what they subsequently do or don’t do, they will forever be subject to detention without bail and then deportation. When you hear Trump or his hirelings talk about “criminal aliens,” keep in mind the term includes people like this who are no threat to anyone.